VCS - Southend Airport No Stopping - RK - Not Driver - Costs Awarded - Another One Bites the Dust

Coupon-mad

Remove you entire Preliminary matter (and any exhibits that go with that argument) which is irrelevant waffle for this case.

Replace it with your 'No keeper liability' section which must go first. The transcripts of VCS v Edward and Excel v Smith should be exhibits 1 and 2. It is a simple fact of law that you cannot be held liable on land under statutory control (byelaws) because Schedule 4 deliberately excludes such land. This C knows you were not driving.  End of story.

But remove this bit (below) entirely and the Jopson exhibit, which has no real application in a case about an Airport 'no stopping zone'.  Get rid of all this because you weren't in the car so you don't know (and the driver staying in the car doesn't mean what they did isn't parking or a stopping breach):

"At no point did the driver leave the vehicle and neither did the driver park, in the sense of leaving the vehicle for a period of time. The entire event lasted only 46 seconds. The persuasive case of Jopson v Homeguard (Exhibit 5) confirmed that stopping is not parking."

Remove the very long narrative about each and every letter and just put one short paragraph about 'responding to 3 or 4 letters', such that this C knew (well before litigation) that the registered keeper wasn't the driver.  Therefore there was never a cause of action.

Remove the entire section about 'unlawful personal data' because it simply isn't true.

stop_this_nonsense

Thank you again @Coupon-mad and @1505grandad.

Changes made and updated version below - I reiterated the point that VCS provide no evidence in the no keeper liability section:

WITNESS STATEMENT

1.             I, …, am the Defendant in this claim. The facts in this statement come from my personal knowledge. My account has been prepared upon my own knowledge.

2.             In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page, reference numbers and excerpts where appropriate. My defence is repeated, and I will say as follows:

No keeper liability

3.             The vehicle keeper is not obliged to name the driver to a private parking company (“PPC”). Had this been the intention of Parliament, they would have made such requirements part of The Protection of Freedoms Act 2012 (“POFA”), which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases with both VCS and its sister company, Excel.

4.             In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re: claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be held liable outwith POFA and no adverse inference can be drawn, if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because POFA does not invoke any such obligation. His Honour Judge Gargan concluded at 35.2 and 35.3 “My decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion...”. Mr Edward's appeal succeeded and the Claim was dismissed (Exhibit 1).

5.             In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re: claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith POFA. Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then POFA Schedule 4 legislation would not have been needed at all). His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting “on behalf of” the keeper, which was without merit. Mr Smith's appeal was allowed, and Excel's claim was dismissed (Exhibit 2).

6.             VCS have not provided any evidence regarding the identity of the driver. It is my honest belief that no evidence exists, it being well within VCS’s interest to deliver it.

7.             POFA provides a statutory tool to enable private parking companies, such as VCS, to transfer liability for parking charge notices to the registered keeper of the vehicle (Exhibit 3).

8.             VCS have averred that they are not relying on keeper liability and are relying on a speculative “reasonable assumption” that I was the driver (Exhibit 5). However, I was one of four people permissible to drive the car at the time, giving VCS’s “reasonable assumption” that I was the driver a mere 1 in 4 chance of being correct.

9.             Notwithstanding that VCS have averred that they are not relying on POFA, the land on which the vehicle was photographed is land subject to statutory control and so is not relevant land within the scope of POFA Schedule 4, 3(1)(c). Additionally, the original “Charge Notice” letter, were it ever delivered, could never be a valid notice to keeper as it was issued outside the 14 day deadline stipulated in POFA Schedule 4, 9(5) (11 Jul 2023, some 16 days after 25 June 2023 – Exhibit 4).

Sequence of events

10.         I confirm that the vehicle was used to transport a relative to Southend Airport at approximately 3:30pm on 25 June 2023 and that I was the registered keeper of the vehicle with the registration mark … (“the vehicle”) at the time.

11.         I was not driving and was not in the vehicle at the time alleged by VCS. I was at home at the time. On the day in question there would have been four people permitted to drive the vehicle. It is noted that the POC makes a broad and imprecise claim that “At all material times the Defendant was the registered keeper and/or driver”. I categorically deny being the driver and VCS is put to strict proof otherwise.

12.         I have been able to ascertain that the driver of the vehicle at the time drove into the airport access road, turned around and then stopped adjacent to the area marked by zig-zags leading away from the zebra crossing. I understand that when the vehicle stopped the passenger opened the car door and stepped out of the vehicle (Exhibit 11).

13.         On 9 August 2023 I received a “CHARGE NOTICE (CN) FINAL REMINDER” (Exhibit 4) referencing a previously sent demand. I categorically deny that I received any previous communication on this matter.

14.         I appealed against this “Charge Notice” using VCS’s online form stating as follows:

(i)            that VCS are unable to use Schedule 4 of POFA to transfer liability to me, the registered keeper;

(ii)         that I was unable to name the driver at the time and that I was under no legal obligation to do so;

(iii)       for VCS to refrain from unlawfully processing my personal data; and,

(iv)        for VCS to refrain from further communication with me on the matter, other than to confirm compliance with my instructions.

15.         VCS responded to my appeal via email on 22 August 2023, acknowledging my statement that I was not the driver but rejecting my appeal (Exhibit 5). No further appeal was possible.

16.         VCS issued several threatening follow-up letters. Having already told VCS that I was not driving, and that there was never a cause of action, I did not see any reason to respond.

17.         VCS issued a LETTER BEFORE CLAIM on 20 October 2023 (Exhibit 6), referencing the “Charge Notice” and alleging a “Principle [sic] Debt” of £170 (comprising the original £100 demand + £70 add-on debt recovery costs). 

18.         I responded to VCS’s LBC, reiterating that:

(i)            there is no keeper liability;

(ii)         there is no legal obligation on me, the registered keeper, to name the driver;

(iii)       there is no application of agency;

(iv)        airport byelaws apply; and,

(v)          continued processing of my personal data is in breach of the UK Data Protection Act 2018 due to a lack of lawful basis.

19.         At all times and in all correspondence received from VCS, only the term “Charge Notice” was used and the industry standard term “Parking Charge Notice” was not used once.

20.         VCS’s legal representative, ELMS Legal, issued a Notification of Instruction to recover the sum of £170 for the alleged debt and referencing a “Parking Charge Notice” for the first time.

21.         VCS issued a claim referencing the “Parking Charge Notice” in the Particulars of Claim (“POC” – Exhibit 7).

Impossibility of contract

22.         The PoC claim is for “breach of contract for breaching terms and conditions”. It is trite law that, for a contract to exist, there must be an offer, an acceptance, and a consideration. The prohibition offers nothing and so can never be a contractual term.

Primacy of statutory powers

23.         The London Southend Airport Byelaws 2021 (“LSA Byelaws” – Exhibit 9) are in force and the statute has primacy in this matter. The vehicle was within the red boundary (indicated in Exhibit 10) that constitutes the land subject to statutory control in the LSA Byelaws 1997. Were it within the airport’s genuine interest to control traffic within this area then a clear, legally enforceable option is available that is directly enforceable by the airport owners. VCS have no standing (as a bare license holder) to prosecute alleged breaches of the in-force statutory laws. For the avoidance of doubt, the byelaws are statutory, not advisory.

24.         In a similar case dismissed at Leicester County Court on January 7, 2022, Deputy District Judge Wigham upheld that East Midlands Airport statutory byelaws, confirmed by the Secretary of State, are binding, contrary to VCS’s claim of them being advisory, adding “these byelaws are there to protect the public from firms like you”. The court dismissed VCS’s claim, refusing permission to appeal.

25.         Furthermore, and by way of alternative defence, airport approach roads are subject to road traffic enactments (public highway). Even if VCS are able to overcome the difficulties they face in showing that:

(i)            they have locus standi to sue in their own name regarding this location, and;

(ii)         they offered a parking space with value, and a licence to park there, and;

(iii)       the driver was afforded the opportunity to accept all contractual terms, and;

(iv)        these terms were prominently displayed and well lit, and;

(v)          their charge notice can override statutory byelaws and has sufficient contractual, commercial and ‘legitimate interest’ to save it from falling foul of the penalty rule, and;

(vi)        the driver was in breach, and;

(vii)     there is some way that, despite the two persuasive appeal judgments against VCS and their sister company Excel, they can hold the me, the registered keeper, liable outwith POFA, then;

VCS are also put to strict proof that:

(viii)   this access road is not part of the public highway. A ‘public highway’ is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is ‘public highway’ and VCS is put to strict proof to the contrary.

VCS’s unreasonable behaviour and breach of code of practice

26.         As a litigant-in-person I seek fixed witness costs for time spent on legal research and preparation. I understand that costs in Small Claims are limited unless “wholly unreasonable conduct” is found.

27.         I attach a detailed costs assessment and request the court to award costs for misconduct under CPR 44.11.

28.         VCS were made aware of the fact that I was not the driver at the outset. I maintain that VCS unconscionably issued the Charge Notice in the complete absence of reasonable cause or evidence and that VCS fully intended to progress to Small Claims ‘come-what-may’.

29.         VCS have harassed me by sending me threatening letters for a non-existent debt and escalating to legal proceedings within the space of three months.

30.         VCS have inflated the claim amount and are engaging in “double recovery.”

31.         VCS did not make any initial communication before a final demand was issued and VCS have used misleading terminology to validate their claim.

32.         My appeal was rejected out-of-hand, with no further evidence provided.

33.         VCS are in breach of the Code of Practice of the International Parking Community (“COP” – Exhibit 13), the applicable Accredited Trade Association (“ATA”) to which this operator signs up to and which was in force on the date in question by:

(i)            issuing a “Charge Notice” – the COP only uses the precise term “Parking Charge Notice” (12 times) and the term “Charge Notice” is never used, and;

(ii)         expressly excluding me, the registered keeper, from further appeal and there being no genuine offer of appeal (Exhibit 5) – VCS’s appeal service is widely considered a kangaroo court (Exhibit 14).

Airport signage and other matters

34.         Signage within the lease boundary at the area where the vehicle is shown in the photographs provided by VCS (Exhibit 11) display the message “No dropping off” and is different to the other signs that adjoin it which display the message “No stopping”, and so is wholly inconsistent with the claimed POC breach (Exhibit 12).

35.         All VCS signage at the airport is prohibitive and it is impossible for VCS to conclude any contract at London Southend Airport, there being no areas within the Airport boundary where VCS offer parking for a price. VCS are put to strict proof that they offer parking for a price within the airport lease boundary.

Coupon-mad

Very good.

stop_this_nonsense

Coupon-mad said:

Very good.

Thank you so much for the guidance on this - @Coupon-mad, @Umkomaas, @KeithP, @1505grandad ... and anyone else I left out!

I am sad to see the points about data protection go but these will form the basis of my complaint to the ICO, so no loss of intellectual effort!

Question re exhibits. I have included the London Southend Airport Byelaws and the IPC Code of Practice. Is it necessary to show the full extract for these in the WS as they run to 100 pages when taken together? OK to provide a link, or embed the doc ... or just excerpts (e.g. first 9 pages of the LSA Byelaws which cover the enactment details and the penalty schedule)? 

LDast

Why not just embed the excerpts that relate into your WS? If necessary, bring a copy of the documents with you (should it ever evolve into an actual hearing)  in case it is disputed that the wording is as in your WS.

1505grandad

Just checking  -  do you have an "Exhibit 8"?  -  (may have missed it)

Fruitcake

If it was me, I would state right at the beginning of para' 3 that you are the keeper but you were not driving, nor present in the vehicle at the material time as part of your No keeper liability point. Get your retaliation in first as it were.

stop_this_nonsense

1505grandad said:

Just checking  -  do you have an "Exhibit 8"?  -  (may have missed it)

Thanks for spotting. I do now! Exhibits got out of synch with the text in the version I posted. 

stop_this_nonsense

Fruitcake said:

If it was me, I would state right at the beginning of para' 3 that you are the keeper but you were not driving, nor present in the vehicle at the material time as part of your No keeper liability point. Get your retaliation in first as it were.

Excellent suggestion! No point in hiding it. 

No keeper liability

1. I was the registered keeper of the vehicle with the registration mark FX63 UDS (“the vehicle”) at the time.
2. I was not driving and was not in the vehicle at the time alleged by VCS. I was at home at the time. On the day in question there would have been four people permitted to drive the vehicle.
3. It is noted that the POC makes a broad and imprecise claim that “At all material times the Defendant was the registered keeper and/or driver”. I categorically deny being the driver and VCS is put to strict proof otherwise.
4.The vehicle keeper is not obliged to name the driver ... etc

and 

Sequence of events

13. I confirm that the vehicle was used to transport a relative to Southend Airport at approximately 3:30pm on 25 June 2023.
24. I have been able to ascertain that the driver of the vehicle at the time drove into the airport access road ... etc.

inthedepthsofthesea

Minor point in para 21 - I would just refer to their claim as "the Claim"... You can then capitalise the term in 22, 30, 31, etc.

21. VCS issued a claim referencing the “Parking Charge Notice” in the Particulars of Claim (“the Claim” – Exhibit 7).

22. The Claim is for “breach of contract for breaching terms and conditions”...